Recent Ruling on ADA Amendments Act

Posted on May 19, 2011 by Tom Crane

 An Eastern District of Texas recently addressed the effect of the ADA amendments Act.  In Norton v. Assisted Living Concepts, Inc., an employee suffered from cancer.  He returned to work and was fired within a month of his return.  The cancer was in remission.  Under the old Americans with Disabilities Act, he would have to show that he had a disability.  To show he had a disability, he would have to establish that the cancer while in remission affected a daily function of living.  This is known as a "major life activity."  Showing that an illness affects a major life activity while in remission would be a high burden for the plaintiff.  

The employer moved for partial summary judgment arguing the employee did not have a disability.  The court rejected that argument.  The judge found that cell growth was affected and under the ADAA, that was enough to show a disability.  The court expanded the former "major life activity" to include "major bodily functions."  The court ruled that "substantially limits" a major life activity should be interpreted as broadly as possible. 

The court not only rejected the employer's motion, but it granted partial summary judgment to the plaintiff on this issue under the new Fed.R.Civ.Pro. Rule 56(f)(1).  

This ruling brings the ADAA comes more closely to the original intent of the ADA.  This decision is reported at:  2011 WL 1832952 (E.D.Tex. 5/13/2011).   

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ADA Restoration Act will not Open the Floodgates

Posted on October 20, 2009 by Tom Crane

 The local newspaper comments on the new ADA as if they just joined the debate.  The regs will make changes, to be sure, but, the floodgates will not open.  The new regs will correct decisions like the 1999 US Supreme Court decision, Sutton v. United Airlines.  We need to remember that when Sutton was decided, there was substantial debate about what Congress intended with the passage of the ADA in 1990.  Did Congress intend to include all persons with disabilities?  Or, did Congress merely intend to cover the most severely disabled?  Both sides tossed around statistics to make their case.  Both sides even toyed with the statistics used in 1990 by Congress when they passd the ADA.  Well, now Congress has responded to the 1999 decision and expressed its will. 

But, even with these new regs and the new ADA Restoration Act, a person with a disability will still have to show that his/her disability affects her job performance.  The new amendment and regs will move the debate away from whether a person has a disability and over to whether the employee sincerely attempted to accommodate the disability, a place where the debate should have been from the get-go.  

The SA Express-News quoted one local defense lawyers  as saying these regs will mean that "almost everyone" has a disability.   That is an exaggeration.  The attorney then recommends "training, training, training" for local supervisors.   I am sure she hopes local employers will contact her for that training. 

In the meantime, unemployment for persons with disabilities continues to rise.  It is over 16% now.  Applications for Social Security Disability Income benefits also continues to rise.  It increased 23% in 2009 over the same time period last year.  The application for SSDI probably reflects the great many employees who find they are unable to perform their work, according to one study.  Speaking as a lawyer for a few of those recent SSDI applicants, I can attest that these employees often find the employer unwilling to accommodate their disabilities.  So, they sometimes simply give up and apply for benefits.  They have to support themselves, somehow. 

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